Under English law a child can have a maximum of two legal parents and the law dictates who these are irrespective of any agreement you may have, so it’s important for couples to consider and be aware of all the circumstances and law behind lesbian parenting.
Who will have parental responsibility?
The birth mother is automatically a legal parent and has parental responsibility.
If conception takes place before marriage or civil partnership, the lesbian partner will only be treated as a legal parent if conception occurred at a licensed clinic in the UK and the correct forms were signed.
If the lesbian partners are in a civil partnership or married at the time of conception, then provided conception occurs through IVF or artificial insemination, the non-birth mother can be named on the child’s birth certificate and will have parental responsibility, giving her authority to make decisions regarding the child’s care and upbringing.
What if a donor is involved in the conception?
If conception occurs through sexual intercourse (natural conception) with the donor you should be aware that the donor will be the legal father, irrespective of any agreement to the contrary or what is recorded on the birth certificate. This would also render him financially responsible for the child.
Also be aware that a donor who is not a legal parent (e.g. when conception occurs through artificial insemination) can make an application to the court in respect of arrangements for the child, but he must first secure the court’s permission to do so.
When considering whether to grant permission, the court will look at his connection with the child. If there has been a history of contact between the donor and child, the court is more likely to deem there to be a bond than if there has been no contact.
If using a donor, it would be a sensible precaution to have the donor undertake a full health check before embarking on conception. It is also common for the donor to give permission for a full set of his medical records to be provided with agreement that future potentially relevant medical information will be communicated.
Donor agreements can be drawn up to record agreements as to the donor’s future involvement regarding the child. These are helpful as they ensure there are no misunderstandings however, it’s important to be aware that no agreement can operate to oust the court’s jurisdiction to deal with any future disagreements which may arise.
This is a developing area of law and each case turns on its own facts, the court making decisions based on the specifics of each case before it.
For more information on lesbian parenting and what to consider before conception, please contact our Family Law team on 0161 475 7676.